McPherson v. Mutter, No. 1:2023cv00057 - Document 13 (S.D.W. Va. 2023)

Court Description: MEMORANDUM OPINION AND ORDER adopting the 11 Proposed Findings and Recommendations by Magistrate Judge; denying the 2 Petition by Wayne McPherson for Writ of Habeas Corpus (2241) and the 3 Motion by Wayne McPherson to Waive State Court Proceed ings; granting the 6 Motion by R. S. Mutter for Judgment on the Pleadings and the 9 Supplemental Motion by R. S. Mutter to Dismiss; dismissing this case without prejudice, and directing the Clerk to remove this case from the court's active docket; additionally, denying a certificate of appealability. Signed by Senior Judge David A. Faber on 7/18/2023. (cc: plaintiff and counsel of record) (arb)

Download PDF
McPherson v. Mutter Doc. 13 Case 1:23-cv-00057 Document 13 Filed 07/18/23 Page 1 of 3 PageID #: 76 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD WAYNE MCPHERSON, Plaintiff, v. CIVIL ACTION NO. 1:23-00057 R.S. MUTTER, Superintendent Stevens Correctional Center, Defendant. MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Findings and Recommendation (“PF&R”) on May 9, 2023, in which she recommended that the district court deny plaintiff’s petition under 28 U.S.C. § 2241 and motion to waive state court proceedings, grant defendant’s motion for judgment on the pleadings and supplemental motion to dismiss, dismiss the matter without prejudice, and remove this matter from the court’s docket. In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Eifert’s Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a Dockets.Justia.com Case 1:23-cv-00057 Document 13 Filed 07/18/23 Page 2 of 3 PageID #: 77 de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). Neither party filed objections within the required time period. Having reviewed the Findings and Recommendation filed by Magistrate Judge Eifert, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby DENIES plaintiff’s petition under 28 U.S.C. § 2241 and motion to waive state court proceedings, GRANTS defendant’s motion for judgment on the pleadings and supplemental motion to dismiss, DISMISSES this case without prejudice, and directs the Clerk to remove this case from the court’s active docket. Additionally, the court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the denial of a constitutional right.” 2253(c)(2). 28 U.S.C. § The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that the governing standard is not satisfied in this instance. court DENIES a certificate of appealability. 2 Accordingly, the Case 1:23-cv-00057 Document 13 Filed 07/18/23 Page 3 of 3 PageID #: 78 The Clerk is directed to forward a copy of this Memorandum Opinion and Order to plaintiff and counsel of record. IT IS SO ORDERED this 18th day of July, 2023. ENTER: David A. Faber Senior United States District Judge 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.